Striking out Disability Discrimination Claims

Wednesday, May 1, 2013

The Problem

We are often asked the question “how can we (the employer) be guilty of disability discrimination when we knew nothing about the alleged disability?” This question can be asked by the employer at any stage of the employment relationship, from recruitment through to dismissal.

In Patel v Lloyds Pharmacy Ltd the claimant (who suffered from a bipolar disorder) brought a tribunal claimfor direct disability discrimination against Lloyds Pharmacy when he was rejected for a position of pharmacy manager following a job interview in 2011. The employment judge struck out Mr Patel’s discrimination claim on grounds that it had no reasonable prospect of success. This was because there was nothing to indicate that the interviewers knew anything or could reasonably be expected to have known anything about his disability. Mr Patel appealed to the EAT.

The Principles

A claim for direct disability discrimination can only succeed if the employer knew (or could reasonably have known) of the disability at the relevant time (in this case the time of the interviews). The disability must form part of the employer’s “conscious or subconscious reason” for the less favourable treatment. In this case, although fact sensitive, there was no way the interviewers could have known about the employee’s disorder.

Separately, an employment tribunal may strike out a claim or response for a number of reasons, including where the claim or response has “no reasonable prospect of success”. Discrimination claims should not be struck out on this ground, except in the “plainest and most obvious cases”. In previous case law “no reasonable prospects of success” meant that the claim should not be struck out if the prospects for success were “realistic” as opposed to “fanciful”. It has also been held that tribunals should not be overzealous in striking out a case in which the facts are in dispute, unless the facts as alleged by the claimant disclose no arguable case in law or where the facts alleged by the claimant were “totally and inexplicably inconsistent with the undisputed contemporaneous documentation”.

The Practice

Striking out a claim has never been the easiest decision to secure from a tribunal. Solicitors and their clients frequently think claims have no reasonable prospect of success but the test we apply is often less rigorous than the test applied by tribunals. We should not, therefore, take from this case an expectation that certain claims can or will be easily struck out. However, employers can be hopeful if the weight of evidence is in their favour. This case highlights that tribunals are able to take a fairly robust approach to unmeritorious discrimination cases where appropriate.

It remains to be seen whether the changes to the tribunal rules coming into force in the summer will also lead to a greater number of strike outs, given the pressure on tribunals to ‘weed out’ weaker claims earlier on.

For more information, help or advice please contact Tim Davies on 0191 211 7927.